Hastening Harmonization in European Union Patent Law Through a Preliminary Reference Power

Abstract

The European Union has struggled for decades to establish a streamlined method of uniform patent protection. Its current solution involves both a European Patent of Unitary Effect and the implementation of the Unified Patent Court to adjudicate patent claims. The current proposal, however, does not eliminate the two other routes to patent protection that currently exist: national patent grants and classical European patents. The existence of three possible routes to patent protection could lead to increased fragmentation in the way patents are interpreted across the European Union. Creating a more unified system entails both ensuring that the substantive patent law contained in the Unified Patent Court Agreement is binding on member states, and giving the newly formed Unified Patent Court a preliminary reference power to interpret the substantive provisions of the Unified Patent Court Agreement.